Change in use of a structure
Change in use of a structure or part of a structure is an issue of great practical importance. The wording of Construction Law Art. 71(1)(2) can raise doubts, but rulings by the administrative courts help to understand it.
Art. 61 of Poland’s Construction Law, in connection with Art. 5(2), requires the owner or operator of a structure to use the structure in a manner consistent with its intended use. But the intended use of a structure is not fixed and may change during the lifetime of the structure. The regulations provide for the possibility of changing the intended use of a structure during the period while the structure is being used. Under Art. 71(1)(2) of the Construction Law, change in the manner of use of a structure or part of a structure means in particular an act or omission in the structure or part of the structure changing the conditions for fire and flood safety, work, health, hygiene and sanitation, environmental protection, or the amount or distribution of the load. This provision does not exhaustively list the instances which the law will treat as a change in the manner of use, as demonstrated from the use of the phrase “in particular.”
Art. 71(2) of the Construction Law also imposes an obligation to notify the relevant authority (executive of the county or province) of a change in the manner of use of a structure or part of a structure, while Art. 71a calls for fairly severe consequences of a change in use without notification (including for example halting the use of the structure). This is why the proper interpretation of Art. 71(1)(2), including the proper determination of whether and when there is a change in use of a structure, can have great significance for the occupier.
The case law attempts to fill the gaps in the not entirely clear wording of the law. The Supreme Administrative Court has held that although Art. 71(1)(2) does not include an exhaustive definition of “change in the manner of use of a structure or part of a structure,” the wording does reflect the legislative intent in terms of the limitation of the rights and freedoms of users by state authorities, and this wording cannot be ignored when determining whether a change in use has occurred (judgment of 27 August 2002, Case IV SA 2147/00, Legalis No. 59452).
It may be a change in the use of a structure or part of a structure to increase the intensity of the existing use, if that causes the consequences referred to in Art. 71(1)(2) of the Construction Law. This position was taken by the Opole Province Administrative Court in the case of an increase in the amount of manufacturing or service use of a building, which could have negative consequences on the surroundings, particularly in terms of health, hygiene and sanitary conditions, or even conflict with the findings of the local zoning plan (judgment of 6 March 2008, Case II SA/Op 489/07, Legalis No. 268693).
There is a widespread view in the case law that not every change in the manner of use of a structure or part of a structure is material from a legal standpoint, and thus not every change requires notification of the relevant authority. Notification is required for a modification that affects the requirements imposed on the structure, which, as the courts have held in several recent cases, boils down mainly to a determination of whether there would be any safety impacts from continuing the modified use. Interpretation of this section of the law under the specific circumstances should be guided by the legislative intent, which is primarily to ensure the safety of users of the structure (Supreme Administrative Court judgment of 5 May 2011, Case II OSK 785/10, Legalis No. 341642).
The holding by the Supreme Administrative Court in its judgment of 21 December 2010 (Case II OSK 1918/09, Legalis No. 354697) is particularly important for investors. The court held that a change in the intended use of a building from residential to office purposes impacts at least the conditions of fire safety, work, health, hygiene and sanitation, or the amount or distribution of the load. This follows from the Minister of Infrastructure’s Regulation of 12 April 2002 on the Technical Conditions for Buildings and Their Location. Because an office building is regarded as a building for public use under §3(6) of that regulation, it must meet the conditions specified for that type of building, and consequently the relevant authority must be notified of such a change.
In short, not every change in use of a structure requires notification of the authorities. Notification is required for a change that modifies the requirements imposed on the structure, particularly with respect to safety. Thus it is necessary to determine the impact that the proposed modification will have on the requirements involving the rules for proper use detailed in Art. 5 of the Construction Law. That will then enable a full evaluation of whether the change in use is possible and whether it requires notification.
Łukasz Filipek, Real Estate & Construction Practice, Wardyński & Partners